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Monday, September 21, 2015

Common law and Constitutional law

I'd like to comment on a key aspect of TFan's contension that Supreme Court rulings ipso facto constitute "the law of the land."

It's true that American jurisprudence was influenced by the English common law system. After all, we started out as a bunch of English colonies. To some extent, Colonial America was governed by common law, although you had some theocratic communities which appeal to Biblical law.

But while there's a degree of continuity with the English system, there's also a significant degree of discontinuity. Unlike England, which had no written Constitution (although they do have Magna Carta, as well as the 1689 Declaration of Rights), the founders of the Republic broke with English jurisprudential tradition by having a written Constitution, which is the supreme law of the land. We need to distinguish between Colonial American jurisprudence and Republican American jurisprudence. A written Constitution subordinates all three branches of gov't to a Constitutional rule of law. In the absence of a written Constitution, precedent is more authoritative.

This is reinforced by the fact that the American Republic was founded on the consent of the governed. And even in Colonial America, deference to common law was far from absolute, as Larry Kramer has documented, in his historical investigations of "popular constitutionalism." And that's because there was a dialectical relationship between common law and fundamental law (or natural law).

3 comments:

Regarding "In the absence of a written Constitution, precedent is more authoritative." Whether it's more or less authoritative again misses the point (rather plainly and repeatedly stated) of the article, namely that the Obergefell decision is law.

Arguably, US Supreme Court *Constitutional* precedent is more authoritative than its English counterpart, because Parliament can simply legislatively overrule the courts there, whereas here it takes a Constitutional amendment in the US.

So, even if you're trying to address the issue of judicial supremacy (which my original post wasn't arguing), the discontinuity is in favor of greater supremacy in the US.

"Arguably, US Supreme Court *Constitutional* precedent is more authoritative than its English counterpart, because Parliament can simply legislatively overrule the courts there, whereas here it takes a Constitutional amendment in the US."

To say it takes a Constitutional amendment to override a Supreme Court ruling presumes the very thing you need to prove. Your argument is dependent on judicial supremacy.

"…the discontinuity is in favor of greater supremacy in the US."

To the contrary, a written constitution gives gov't less leeway than a purely common law arrangement. As a matter of principle, a written constitution limits the scope of gov't–including the judiciary.

"To say it takes a Constitutional amendment to override a Supreme Court ruling presumes the very thing you need to prove. Your argument is dependent on judicial supremacy. "

a) I don't need to prove judicial supremacy to prove that judicial precedent is law. You seem to have trouble distinguishing those points.

b) Practically anyone who knows anything about the American legal system recognizes that for the last two centuries, judicial supremacy has been the status quo. That two centuries is old enough to encompass the founding fathers, like Madison of Marbury vs. Madison.

"To the contrary, a written constitution gives gov't less leeway than a purely common law arrangement."The English system wasn't a purely common law arrangement, so your argument fails.